Courts are understandably wary: Marriage is not in the Constitution

Wednesday

Jan 15, 2014 at 12:01 AM

WASHINGTON — The movement to legalize same sex marriage has gained such momentum in recent years with 17 states and the District of Columbia now granting licenses to gay couples that the Supreme Court's recent decision to grant a stay to halt these marriages in Utah is a reminder that the battle is not yet over.

Douglas Cohn and Eleanor Clift

WASHINGTON — The movement to legalize same sex marriage has gained such momentum in recent years with 17 states and the District of Columbia now granting licenses to gay couples that the Supreme Court's recent decision to grant a stay to halt these marriages in Utah is a reminder that the battle is not yet over.

We look to the Supreme Court as the final arbiter in much of life, but there is nothing in the Constitution that addresses the institution of marriage, and the Court has been understandably reluctant to insert itself into a debate that divides many Americans. The rulings the Court handed down last year were as narrowly drawn as possible, overturning the Defense of Marriage Act signed by President Clinton in the 1990s as unconstitutional, and letting a lower court ruling stand in California sanctioning same sex marriage.

The Court ruled then that advocates for Prop 8 which banned gay marriage in California did not have the standing to bring the case, dodging the core question of whether the right to marry is a constitutional right.

Utah became the 18th state to legalize same-sex marriage when a federal judge in Salt Lake City ruled five days before Christmas that a state ban violated federal guarantees of equal protection under the law. The "equal protection" clause of the 14th Amendment has been a mainstay for federal civil rights rulings. Hundreds of couples lined up to marry in the conservative state, prompting assertions that if this social transformation could occur in Utah, where the Mormon culture and traditions are strong, and where the Mormon Church opposes same sex marriage, then change would soon be sweeping all 50 states.

Days later, the Supreme Court granted the state of Utah its appeal for a stay until the case could be adjudicated. There were no dissents. All nine justices agreed that Utah should be given the time and the opportunity to appeal the federal judge's ruling to the 10th Circuit Court of Appeals in Denver. In the meantime, no more marriage licenses will be granted to same-sex couples. The thousand couples who married in Utah during the brief window over the holidays face a legal limbo while the ruling is challenged on the state level. That could take months. Whatever the Court of Appeals decision, it likely will be 2015 before the Utah case, or any other similar case, reaches the Supreme Court.

The Court has made it clear that it would prefer that this cultural issue is decided on a state by state basis. The Constitution does say that states must respect each other's laws under its "full faith and credit" clause. Keeping that in mind, we are likely to see a patchwork of states recognizing gay marriage before we see universal legality.

The decision to hit the pause button in Utah may slow the movement, or generate an added burst of activism. It's hard to predict. But the Supreme Court, including even the most liberal justices, apparently don't want to get ahead of where the country is. The Court's ruling on Roe v Wade in 1973 intensified a backlash against legal abortion that continues unabated today.

If it chose, the Court could rely on the 14th Amendment and rule sweepingly that everyone has a right to marry whom they want. But that won't happen anytime soon, maybe not ever.